DOE’s New Q&A on Campus Sexual Misconduct Increases Flexibility for SchoolsSeptember 28, 2017 – Alerts Higher Education Alert
Announcing several significant policy changes in the handling of sexual misconduct on college campuses, the U.S. Department of Education has published a new Q&A that replaces guidance issued by the Obama administration.
The DOE officially rescinded the controversial “Dear Colleague” letter dated April 4, 2011 along with the related Q&A on Title IX issued in the same month.
In its place is a new Q&A on Campus Sexual Misconduct, released with a cover letter that said the previous guidance had caused colleges and universities to enact procedures that lacked fundamental fairness and were overwhelmingly stacked against the accused.
The DOE indicated that it intends to adopt new policies through a rulemaking process that will include an opportunity for public comment.
In the meantime, the DOE will rely on the 2017 Q&A and certain existing guidance. Generally, the new guidance provides more flexibility to schools in formulating their sexual misconduct policies.
While there will no doubt be more to come with the rulemaking process, there is enough in this pronouncement to merit a review of all sexual misconduct polices.
Key Points About the 2017 Q&A
Time Frame for Investigations
There is no longer a fixed time for completion of a Title IX investigation. The 2011 Letter had suggested a 60-day timeline to complete investigations, which many schools took as a mandate leading to rushed proceedings and hasty decisions.
Adequate Notice of Interviews/Hearings
Each party must receive written notice in advance of an initial interview or hearing with sufficient time to prepare. With the 60-day timeline relaxed, this becomes much more doable.
The investigation must result in a written report, which should summarize all evidence and be made available to all parties. The 2017 Q&A specifically states that the report must include both inculpatory and exculpatory evidence.
The evidentiary standard should either be a preponderance of the evidence or clear and convincing evidence. The DOE stated that the standard of evidence for a sexual misconduct claim should be the same as is applied in any other misconduct case. It cites as support a recent Federal Court ruling concluding that a school denies basic fairness when it applies a lower standard of evidence only in sexual misconduct cases.
The 2011 Letter stated that schools should not wait for completion of their investigation before taking measures to “protect the complainant.” The 2017 Letter makes it clear that interim measures are individualized services that should be made available to each party, as necessary, without relying on operating assumptions that favor one party over another.
If an institution allows for an appeal, it can provide the appeal right a) solely to the responding party, or b) to both parties on an equal basis.